Liberal attorneys general are using 'a playbook that Republicans wrote' to save Obamacare from Trump

Cathey
Park of Cambridge, Massachusetts shows her cast signed by U.S.
President Barack Obama after he spoke about health insurance at
Faneuil Hall in Boston Oct. 30, 2013.Reuters/Kevin Lamarque

WASHINGTON/SAN FRANCISCO (Reuters) - To stop President
Donald Trump from undermining Obamacare, Democratic Massachusetts
Attorney General Maura Healey is considering an approach that has
worked against the administration on immigration: using Trump's
own words against him.

Trump said he would let the Affordable Care Act "explode" after
Republicans failed last month to pass their own repeal bill in
Congress, and told the Wall Street Journal on Wednesday that he
may withhold billions of dollars of payments to insurers to force
Democrats to negotiate on healthcare.

Public statements like that led to judges blocking Trump's
proposed travel bans earlier this year, and could prove to be one
line of attack in legal attempts to protect the healthcare
bill, according to a handful of liberal U.S. lawyers and
state attorneys general. They said they are waiting to
see what action the administration ultimately takes on the
healthcare law before they will officially respond.

Democratic attorneys general took a lead role to successfully
block Trump's executive orders restricting travel from some
Muslim-majority countries, and are also resisting efforts to roll
back environmental regulations.

Now, the threat of potential litigation over the healthcare law
from states, which takes a page from the Republicans' playbook
during the Obama administration, is complicating the Trump
administration's efforts to formulate its own approach on health
policy outside congressional legislation, according to two
conservative lobbyists briefed on internal discussions.

Massachusetts
Attorney General Maura Healey, right, joined by New York Attorney
General Eric Schneiderman, discusses a lawsuit against
Volkswagen, Tuesday, July 19, 2016, in New
York.AP Photo/Mark
Lennihan

The White House maintains that the healthcare law is "already
collapsing on its own, and will continue to go in the wrong
direction as more Americans face skyrocketing premiums, higher
deductibles, and less choice," an administration spokesman told
Reuters. "President Trump and his administration are committed to
working with Congress to repeal and replace Obamacare."

Noting that several federal judges cited Trump's comments on
Muslims to support the idea that his executive orders
unconstitutionally targeted a religious group, Massachusetts AG
Healey said Trump is legally bound to enforce the ACA. But his
words make it clear he is willing to sabotage it, in her view.

"He is intent on setting the dynamite and blowing this up,"
Healey told Reuters.

She said it is too early to speculate about specific legal action
but said Trump's remarks about the law "suggest he is out there
not just hoping that it fails but working to see it fail."

In addition to Healey, Democratic attorneys general for
California, Connecticut and the District of Columbia told Reuters
they are closely monitoring the administration for any signs it
is undermining the ACA.

The California attorney general's office recently hired a health
policy expert, Melanie Fontes Rainer, who worked for Democrats in
the U.S. Senate. California Attorney General Xavier Becerra said
in a statement his office is "leaning forward when it comes to
protecting our people's right to affordable, quality health
care."

Four private lawyers in Washington D.C. said they have discussed
possible challenges among themselves and potential clients who
have benefited from the law. One such legal challenge being
discussed is suing the Trump administration for failing to abide
by the "take care clause," which requires that the president
faithfully execute laws enacted by Congress, according to Deepak
Gupta, a Washington lawyer who often works on public interest
cases.

"That the president is operating in good faith … is pretty
critical to how the law works. That good faith is legitimately in
question," he said.

Texas and other states that challenged Obama's executive action
seeking to prevent immigrants from being deported cited the take
care clause in their lawsuit, claiming he was failing to enforce
immigration law.

'A Playbook That Republicans Wrote'

The new administration could effectively cripple Obamacare with a
pending Republican lawsuit over cost-sharing subsidies that was
appealed by the Obama administration and put on hold when Trump
took office.

Trump said he may withhold the payments, which help cover
out-of-pocket medical costs for low-income people, that
Republicans argue must be appropriated by Congress. Proponents of
Obamacare say that not funding the subsidies, which amount to
about $7 billion a year, would torpedo the law because it would
cause insurers to flee the individual market and could leave
millions of people without a place to purchase insurance.

But the administration must weigh whether to fund the subsidies
at the risk of being viewed as helping the law succeed, or be
blamed - and possibly sued by attorneys general - for the law's
demise, according to the lobbyists, who have been briefed on
internal discussions.

"There's a concern that liberal attorneys general would file
suits," one lobbyist said. "This is a playbook that Republicans
wrote during the Obama administration."

A
small group of demonstrators stand outside of the HIlton Hotel
and Suites prior to former South Carolina Senator Jim DeMint,
president of the The Heritage Foundation, speaking at a "Defund
Obamacare Tour" rally in Indianapolis August 26,
2013.Thomson
Reuters

In some respects, the Trump administration has already taken
steps to erode parts of the law.

It said it will not enforce the individual mandate, the
requirement that everyone have health insurance or pay a penalty,
which experts say is needed to keep healthy people in the markets
and offset more expensive patients.

Dave Jones, the California state insurance commissioner, wrote a
letter to Trump earlier last month requesting that the
administration "stop taking administrative actions which
undermine the Affordable Care Act and destabilize health
insurance markets across the country."

Jones is also running for attorney general in California, a
heavily Democratic state where fighting the Trump administration
is a key political asset.

If the administration does not enforce the law, "we will
certainly look at all our legal options and remedies that might
be available," he said.